H.E. Butt Grocery Co. v. Bilotto

• Decision Date: 10 July 1996
• Docket Number: No. 04-94-00116-CV,04-94-00116-CV
• Citation: 928 S.W.2d 197
• Parties: H.E. BUTT GROCERY COMPANY, Appellant, v. Vinnie BILOTTO, Appellee.
• Court: Texas Court of Appeals

Page 197

928 S.W.2d 197

H.E. BUTT GROCERY COMPANY, Appellant, v. Vinnie BILOTTO, Appellee.

No. 04-94-00116-CV.

Court of Appeals of Texas,

San Antonio.

July 10, 1996.

Rehearing Overruled Aug. 19, 1996.

Wade B. Shelton, Shelton, Lotz & Valadez, P.C., San Antonio, Wallace B. Jefferson, Crofts, Callaway & Jefferson, P.C., San Antonio, for appellant.

Les Mendelsohn, Ricky Poole, Speiser, Krause, Madole & Mendelsohn, Jackson, San Antonio, for appellee.

Before the court en banc. ¹

LPEZ, Justice.

Vinnie Bilotto recovered a judgment against H.E. Butt Grocery Company (HEB) for injuries Bilotto suffered as a result of a slip-and-fall accident. HEB contends, in its sole point of error, that the trial court erred in informing the jury of the legal effect of its answers by conditioning the damage question on finding Bilotto 50% or less negligent. We disagree with HEB and affirm the trial court's decision.

HEB specifically asserts that the trial court erred in informing the jury that a percent-responsibility finding in excess of 50% for Bilotto would preclude Bilotto from recovering any damages. Questions 1(a) and (b) in the court's charge requested that the jury determine whether Bilotto or HEB's negligence was a proximate cause of the accident. If the answer to both Questions 1(a) and 1(b) was "yes", the jury was instructed to continue with Questions 2(a) and (b), to determine the parties' respective percentages If, in answer to Question 1, you have answered "NO" for VINNIE BILOTTO, or if, in answer to Question No. 2 you have found that 50 percent or less of the negligence that caused the occurrence is attributable to VINNIE BILOTTO, then answer Question No. 3. Otherwise, do not answer Question No. 3.

of responsibility. The jury was further instructed:

Question No. 3 asked the jury to assess Bilotto's damages.

During the charge conference, HEB objected to the 50% bar instruction following Question 2. HEB argued that the instruction impermissibly informed the jury of the legal effect of its answer, thereby violating Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85 (1954), and Texas Rule of Civil Procedure 277. The objection was overruled by the trial judge.

While deliberating, the jury sent a note requesting that the trial judge "clarify the if/or situation at the end of question 2." The judge responded by asking the jury to clarify its question. The jury did not send out any further communication and returned a 10-2 verdict finding HEB and Bilotto each 50% negligent. Based on the jury's findings, the trial court rendered judgment awarding Bilotto $135,346.73, and HEB appealed.

Error in the charge is reviewed under an abuse of discretion standard. Texas Dept. of Human Serv. v. E.B., 802 S.W.2d 647, 649 (Tex.1990). To establish reversible error, the complaining party must show that the trial court acted arbitrarily, unreasonably, or without consideration of guiding rules and principles. Downer v. Aquamarine Operators Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). "[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion...." Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

Bilotto argues that the question and the 50% bar instruction were properly included in the charge. For support of his position, Bilotto directs us to excerpts from the transcript of a meeting of the Supreme Court Advisory Committee on the Rules of Civil Procedure (SCAC), the Texas Pattern Jury Charges, and the language of Rule 277.

Transcripts from SCAC meetings can be instructive in interpreting a particular rule. See R.K. v. Ramirez, 887 S.W.2d 836, 841 (Tex.1994); Smith v. Christley, 755 S.W.2d 525, 528-29 (Tex.App.--Houston [14th Dist.] 1988, writ denied). The excerpts regarding an instruction on the 50% rule are mentioned in reference to a proposed amendment to Rule 277, allowing the court to inform the jury of the effect of its answers. Because this amendment did not become part of Rule 277, the excerpts are not pertinent to an interpretation of the Rule in its current form.

The question submitted to the jury followed Texas Pattern Jury Charge 80.01, Instruction 2:

If, in answer to Question ____ [the negligence question], you have answered "No" for [plaintiff] or if, in answer to Question ____ [the percentage causation question], you have answered 50 percent or less for [plaintiff], then answer the following question. Otherwise, do not answer the following question.

2 STATE BAR OF TEXAS, TEXAS PATTERN JURY CHARGES PJC 80.01 (1990).

Although we are aware that the Texas Pattern Jury Charges are not "law", they are heavily relied upon by both the bench and bar. See, e.g., Gunn Buick, Inc. v. Rosano, 907 S.W.2d 628, 632 (Tex.App.--San Antonio 1995, no writ); Westchester Fire Ins. Co. v. Lowe, 888 S.W.2d 243, 253 (Tex.App.--Beaumont 1994, no writ); Baptist Memorial Hosp. Sys. v. Smith, 822 S.W.2d 67, 72 (Tex.App.--San Antonio 1991, writ denied); Dion v. Ford Motor Co., 804 S.W.2d 302, 308 (Tex.App.--Eastland 1991, writ denied); cf. 1 STATE BAR OF TEXAS, TEXAS PATTERN JURY CHARGES Introduction at xix (1987). The recommendations made in the Texas Pattern Jury Charges are based on what the committee "perceives the present law to be." 1 STATE BAR OF TEXAS, TEXAS PATTERN JURY CHARGES Introduction at xx (1987).

We were able to locate only one case in which a Texas court has expressly altered a Pattern Jury Charge. See Keetch v. Kroger Rule 277 expressly prohibits the trial court from informing the jury of the effect of its answers. TEX.R. CIV. P. 277; Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 256 (Tex.1974); Grieger, 271 S.W.2d at 87. However, Rule 277 also provides:

Co., 845 S.W.2d 262, 266-67 (Tex.1992). In Keetch, the court recommended different instructions to define both negligence and ordinary care in a premises liability case. Id. We were also only able to locate one case in which a Texas appellate court has addressed Pattern Jury Charge 80.01. See H.E. Butt Grocery Co. v. Paez, 742 S.W.2d 824, 825 (Tex.App.-Corpus Christi 1987, writ denied). In Paez, the court held that the trial court could submit the damage question conditionally upon a liability finding of "at least fifty (50) percent or more." Id.

In any cause in which the jury is required to apportion the loss among the parties the court shall submit a question or questions inquiring what percentage, if any, of the negligence or causation, as the case may be, that caused the occurrence or injury in question is attributable to each of the persons found to have been culpable. The court shall also instruct the jury to answer the question or questions without any reduction because of the percentage of negligence or causation, if any, of the person injured. The court may predicate the damage question or questions upon affirmative findings of liability.

We find that the instruction given is not prohibited by Rule 277 because the Rule itself requires apportionment of the loss by percentages and allows the court to predicate damages on a finding of liability. See Paez, 742 S.W.2d at 825; cf. Sanchez v. Excelo Bldg. Maintenance, 780 S.W.2d 851, 855 (Tex.App.--San Antonio 1989, no writ). Furthermore, the trial court followed the wording of the appropriate Pattern Jury Charge, a widely accepted source throughout the legal community. We cannot say, therefore, that the submission of the 50% bar instruction amounted to "a clear failure by the trial court to analyze or apply the law." See Walker, 827 S.W.2d at 840. HEB's sole point of error is overruled and the judgment is affirmed.

DUNCAN, J., joined by RICKHOFF, J. (writing separately), and by GREEN, J., dissenting.

DUNCAN, Justice, dissenting.

This appeal turns upon the proper application of the appropriate standard of review for charge error. The question presented is whether the trial court abuses its discretion in submitting a Pattern Jury Charge instruction when a similar instruction has been held to be reversible error by the Texas Supreme Court. The majority holds that the trial court has discretion to submit such an instruction because it "follow[s] the wording of the appropriate Pattern Jury Charge, a widely accepted source throughout the legal community." In our view, this holding and its rationale are not only wrong but a dangerous perversion of the standard of review for charge error. Accordingly, we dissent.

APPLICABLE LAW AND STANDARD OF REVIEW

The trial court's charge "shall submit such instructions ... as shall be proper to enable the jury to render a verdict." TEX.R. CIV. P. 277. "For an instruction to be proper, it must: (1) assist the jury; (2) accurately state the law; and (3) find support in the pleadings and evidence." European Crossroads' Shopping Center, Ltd. v. Criswell, 910 S.W.2d 45, 53 (Tex.App.--Dallas 1995, writ denied). Additionally, an instruction "shall not ... advise the jury of the effect of their answers," except "incidentally." TEX.R. CIV. P. 277; compare Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85, 87 (1954) with Cannon Ball Motor Freight Lines v. Grasso, 59 S.W.2d 337, 338-39 (Tex.Civ.App.--San Antonio 1933), aff'd, 125 Tex. 154, 81 S.W.2d 482, 487 (1935).

As two distinguished commentators have noted, "[u]ntil recently, great confusion existed regarding the standard of review for complaints about the court's charge." Roger Townsend, State Standards of Review: Cornerstone of the Appeal, in 6TH ANNUAL CONFERENCE ON STATE AND FEDERAL APPEALS 1-9, 20 (University of Texas School of Law 1996) [hereinafter Townsend]; see also W. Wendell Hall, Revisiting Standards of Review in Civil Fortunately, the confusion surrounding the abuse of discretion standard was dispelled by the supreme court's landmark decision in Walker v. Packer, 827 S.W.2d 833 (Tex.1992), which explained that the abuse of discretion standard is a dual standard, and which aspect of the standard applies depends upon...